How corporations defined themselves as 'persons'

Posted: Wednesday, January 27, 2010

By Clarence Page

Riddle me this: When is a corporation like a freed slave? Answer: When it is trying to win human rights in a case before the Supreme Court.

It may sound odd, but that's the historical background that led up to the Supreme Court's recent decision to open the floodgates on political spending by corporations, unions and other narrow interests.

Sharing the conservative court's problematic view that political money equals political speech, defenders of the 5-to-4 decision in Citizens United v. Federal Election Commission say it's about time the Supreme Court granted corporations the same free-speech rights as individuals.

They say this as if corporations did not have ample opportunities to express themselves already, whether in words or dollars through numerous political action committees and other media.

The court's decision still allows laws that require financial disclosure and other regulations as long as they don't treat corporations or unions differently from individuals. President Obama said his administration would "get to work immediately with Congress" to develop "a forceful response" to the high court's ruling. Several Democratic members of Congress announced new proposals to restrain the ability of corporations and other groups to sway elections with deep-pocket spending.

But even if those attempts at reform are passed, legal experts say, they still won't get far unless they deal with a fundamental legal question: Who says corporations are entitled to the same rights as individuals?

That's where the slaves come in. The Constitution did not mention corporations, just as it did not mention slaves, except to mention euphemistically that all "others" would be counted as "three-fifths of a person" for purposes of reapportionment. The Framers understood the art of compromise.

The Framers left it to the states to create corporations through charters and rules that varied by state. Anyone who put a corporation out of business could be accused of many things, but murder was not one of them.

Yet corporations won constitutional rights through other means, including the amendments passed after the Civil War to give legal equality to another aggrieved group: former slaves.

The 1886 case of Santa Clara County v. Southern Pacific Railroad Company is often cited as the beginning of "corporate personhood" under the law. Yet this personhood comes ambiguously, not in the body of the decision but in something that Chief Justice Morrison R. Waite was quoted in the decision's legal summary as having said before oral arguments began.

"The court does not wish to hear argument on the question" of whether the equal-protection provision in the Fourteenth Amendment "applies to these corporations," he said. "We are all of the opinion that it does."

As a result, the court appears to have ruled on the equal-protection issue without ever weighing it through any argument, deliberation or formal opinions. Thin as this legal reed may be, generations of lawyers have clung to it in arguing for an expanding galaxy of corporate rights.

That's how an amendment intended to thwart slaveholders is used to benefit stockholders.

But is that what most Americans have in mind when they think of equal rights in this country? Most folks probably don't, until they find themselves going up against a corporation in a dispute over a factory farm or toxic landfill. That's what Thomas Linzey, an attorney and founder of the Pennsylvania-based Community Environmental Legal Defense Fund, has found as he has helped local governments across the country take on the principle of corporate personhood.

Not only do corporations claim "personhood," he told me in a telephone interview, but after winning a case on grounds of the interstate commerce clause, they sometimes have sued for damages, claiming their Fourteenth Amendment rights to equal protection were violated.

With experiences like that, Linzey doesn't hold out much hope for the currently proposed campaign finance reforms unless they go at the central question of corporate personhood - and that may require "some sort of grassroots uprising," he said, to amend the constitution, since both political parties are finding more and more ways to feed on corporate contributions.

Which raises another interesting political thought: If the populist tea party movement is truly worthy of its touted "populist" crusade against Wall Street and other powerful interests, they could find common ground with President Obama's call to curb runaway political spending - unless they think corporations are people, too.